Yesterday, the Senate Judiciary Committee passed Senate Bill ("SB") 404. The bill would allow the state to prosecute for child neglect if a child is "habitually absent from school without good cause." SB 404 has moved rapidly through the legislature and will come up on the floor of the Senate for a first reading today.

In West Virginia, truancy is already a criminal offense under West Virginia Code 18-8-2, which charges parents with a misdemeanor if they do not send their children to school as required by law. Current law already provides school officials and courts enough power to handle truancy. This includes granting authority for a magistrate to order children to attend school and to even order parents to accompany the child to school for the whole day for as many days as the judge sees fit, in addition to fining and potentially jailing the parent.

Because these statutes are criminal, however, parents have important due process protections. Schools and courts also must follow specific procedures when there are problems with school attendance. These procedures make sure that everyone understands what is expected of them and what can happen when there are problems. Criminal procedures afford higher protection than the West Virginia child abuse code. However, the abuse and neglect code already provide the state tools to prosecute parents for educational neglect. The term "habitually truant" is a vague term that could be open to definition by courts as well as individual school districts.

If the legislature passes SB 404, however, and creates a new definition of "neglect" in the abuse code, more families will be hauled into family court with fewer due process protections. These families will be subject to the whims of judges who could order just about anything they want, including the removal of children from the home, just because children, in their opinion, haven't been to school enough. Judges should not have this authority, and it is crucial that all freedom-loving West Virginians tell the legislature no to giving this unfettered discretion and power to judges in our state.

ACTION REQUESTED

Please contact your senator IMMEDIATELY and give him or her the following messages in your own words:

"I am calling to oppose SB 404, which defines habitual school absences as a form of child neglect. This bill is unnecessary and gives too much power to judges over West Virginia families without proper legal protections. Truancy and neglect laws today already provide the government with plenty of power to address children who are not attending school. Current law also protects parents, children and school personnel by giving specific procedures under which they are to act. By placing a new definition of abuse and neglect in the law, judges would have unbridled discretion to decide in their own subjective opinion whether a child is truant and what to do about it--including removing children from their homes. Children should not be taken away from their parents just because they don't go to school enough in the subjective opinion of a judge. "

"The proposal does not take into consideration other circumstances that would legitimately explain a child's absences, such as emotional or mental problems, or even if a child were removed from school to be homeschooled. Please vote no on this dangerous and unnecessary legislation and protect West Virginia families from being hauled into courts with less due process protections. Parents and schools, not judges, should be addressing the issues of school attendance for children under the current law, which is sufficient."

"This bill did not proceed last year after being studied and should not move forward this year. Last year in the study committee it was reported that there was over 90% attendance compliance in West Virginia, so this law is certainly not indicated. Please vote against SB 404."

You can find your senator and his or her contact information here: http://www.hslda.org/elink.asp?id=17710

BACKGROUND

If passed HB 4309 would:

> Define parents as child abusers if their children appear physically healthy but miss what a judge thinks is too many days of school;

> Makes it too easy for Child Protection Services and judges to remove children from a home even if the children were not "actually" abused or neglected;

> Puts too much power in the hands of unaccountable judges with vague definitions and broad powers. What is habitually absent? Who defines "healthy" or "physically safe"?

> Could result in the removal of children from their homes who are having non-physical problems, such as depression or other emotional issues and force them to attend public school against their parents will;

> Would affect homeschool families if they do not file their homeschool paperwork properly, such as a late notice of intent or not complying with the 14-day waiting period before pulling children out of public school to homeschool;

> Does not take into consideration children's special physical, mental, emotional or other needs.

> Treats truancy as child abuse and places parents in Family Court were the judges have virtually unlimited powers and where parents have fewer due process protections;

> Creates a system of enforcement that just does not care about the individual needs of a child and the efforts that parents are putting in to meeting those needs.

> Is unnecessary because state law already provides sufficient authority to punish parents and for schools and attendance directors to fashion remedies to deal with habitual truancy under the criminal code.

Thank you for all you do in defense of freedom for families in the great state of West Virginia!

Very truly yours,

Michael P. Donnelly, Esq. HSLDA Staff Attorney

P.S. We greatly value you and your support--it is a privilege to serve you! If you or someone you know is not a member of HSLDA, will you consider taking a moment today to join or recommend us? Your support for our work enables us to defend individual families threatened by government officials and protect homeschooling freedom for all. Join now: http://www.hslda.org/elink.asp?id=17711

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